High Court of KeralaSingle Judge2022-02-08Original Petition allowed; CMA order set aside;...

Jinimol T.S. v. Shiju Augustine and Kerala Child Welfare Society

Case / Petition Number:OP(C) No.1906/2021

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Badharudeen
Judgment Date: 2022-02-08
Court Decision / Holding: Original Petition allowed; CMA No.3/2021 reversed; common order of the Munsiff in I.A. Nos.2663/2018 and 2662/2018 restored; the ex parte decree is set aside and the matter is to be decided on merits consistent with the Munsiff’s order.
Final Disposition: Original Petition allowed; CMA order set aside; common order of the Munsiff restored; ex parte decree set aside and the case to be decided on merits as per order.

Parties to the Case

Appellants / Petitioners

Jinimol T.S.

Respondents

Shiju Augustine
Kerala Child Welfare Society

Legal Representation & Advocates

Counsels for Petitioners

• Sri. B.S Sivaji
• Smt. Dhanya Sreenivasan

Counsels for Respondents

• Sri. Lal K. Joseph
• Sri. Biju Abraham
• Sri. Anzil Salim

Case Synopsis & Summary

Jinimol T.S. filed OP(C) 1906/2021 challenging the Sub Judge’s CMA order (CMA 3/2021) in Alappuzha that allowed the respondents to contest the suit on merits by condoning an extended delay in setting aside an ex-parte decree in O.S. No.1091/2014. The original suit, for realization of money, was decreed ex-parte in 2015 after alleged non-service of notice; a sale in execution was confirmed in 2019. The defendants (judgment debtors) moved to set aside the ex-parte decree via I.A. Nos.2662/2018 and 2663/2018, which the Munsiff dismissed for lack of “sufficient cause” to condone a 1052-day delay. On appeal, the Sub Judge, Alappuzha, CMA No.3/2021, felt the reasons for non-appearance were not convincing but allowed the petitions to contest on merits, subject to costs. The High Court (A. Badharudeen, J.) held that the lower courts erred in condoning such a lengthy delay without satisfying the “sufficient cause” standard of Section 5 of the Limitation Act and reversed the CMA order, restoring the Munsiff’s common order. The decision underscores that liberal considerations are permissible, but delay must be satisfactorily explained and cannot defeat a plaintiff’s rights through inadvertent or unexplained lapses. The court also cites relevant precedents to illustrate the balancing of justice and final relief.

Provisions of Law Cited

The Limitation Act, 1963 – Section 5

Legal Doctrines & Maxims

Liberal construction of ‘sufficient cause’ under Section 5 of the Limitation Act, 1963 to advance substantial justice
Delay condonation depends on the entire facts and conduct of the parties, not a rigid formula
Pokku v. Ammini (1987 KHC 446) cited to support liberal approach to contest on merits where justice requires

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant contends that the decree in O.S.1091/2014 was decided ex parte after improper service, and that condoning a delay of 1052 days under Section 5 of the Limitation Act requires a clear, satisfactory showing of ‘sufficient cause.’ It is urged that the trial court correctly found no sufficient cause and that the lower appellate court erred in degrading the necessity of timely, adequate service and a demonstrable basis for delay. The petition emphasizes that the plaintiff’s right to speedy justice and finality should not be undermined by liberal, unsubstantiated condonation of delay, and that the court should not grant relief on mere liberal conceits but on proven conduct and facts, including non-receipt of notice and distress caused by service failures. The counsel invokes established precedents underscoring the need to balance rights with a robust application of Section 5.

Contentions of Respondents

The respondents argue that non-receipt of notice and long delay constitute ‘sufficient cause’ for condonation, especially where a sale has occurred and an ex parte decree was issued. They contend that liberal approach must consider the rights and obligations of both parties and that substantial justice can be achieved by allowing contest on merits with the caveat of costs. They rely on Supreme Court precedents (Civil Appeal Nos.1166/2006 and 2926/2020) supporting liberal interpretation of ‘sufficient cause’ while balancing the circumstances, conduct, and overall circumstances of the parties to determine whether delay should be condoned.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Pokku v. Ammini	1987 KHC 446	Positive	Cited to support a liberal approach to condone delay and allow contest on merits in the interest of substantial justice.
Civil Appeal No.1166/2006	Civil Appeal No.1166/2006	Positive	Cited to illustrate liberal construction of ‘sufficient cause’ under Section 5 of the Limitation Act.
Civil Appeal No.2926/2020	Civil Appeal No.2926/2020	Positive	Cited to emphasize weighing entire facts and conduct of the parties in deciding delay condonation.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 8[TH] DAY OF FEBRUARY 2022 / 19TH MAGHA, 1943** **OP(C) NO. 1906 OF 2021** **AGAINST THE ORDER/JUDGMENT IN CMA 3/2021 OF PRINCIPAL SUB COURT/COMMERCIAL COURT, ALAPPUZHA** ## **PETITIONER/RESPONDENT IN CMA:** JINIMOL T.S, AGED 48 YEARS, W/O.RAMACHANDRAN, RESIDING AT PULICKAL HOUSE, PERUMTHURUTHU, MUHAMMA P.O., ALAPPUZHA DISTRICT, PIN-688 525. BY ADVS. SRI.B.S.SIVAJI SMT.DHANYA SREENIVASAN ## **RESPONDENTS/APPELLANTS 1 & 2 IN CMA:** 1 SHIJU AUGUSTINE, AGED 38 YEARS, S/O.AUGUSTINE, RESIDING AT CHAMPAPILLIL HOUSE, HORUKULAKARA, KURUMATHOOR VILLAGE, THALIPARAMBA TALUK, KANNUR DISTRICT, PIN-670142. 2 KERALA CHILD WELFARE SOCIETY, CHERUKULANGARA DESOM, REPRESENTED BY ITS CHAIRMAN SHIJU AUGUSTINE, RESIDING AT CHAMPAPILLIL HOUSE, HORUKULAKARA, KURUMATHOOR VILLAGE, THALIPARAMBA TALUK, KANNUR DISTRICT, PIN-670142. BY ADVS. SRI.LAL K.JOSEPH SRI.BIJU ABRAHAM SRI.ANZIL SALIM THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C) No.1906/2021 2 ## **JUDGMENT** The petitioner herein is the plaintiff in O.S.No.1091/2014 on the file of Principal Munsiff Court, Alappuzha. The respondents herein are defendants in the above suit. 2. Heard both sides in detail. 3. I shall refer the parties in this appeal as to their status on the trial side. Shorn facts necessary for disposal of this Original Petition: Plaintiff filed O.S.No.1091/2014 before the Principal Munsiff Court, Alappuzha for realisation of money. When notice was issued to the defendant in his admitted address, it was not served and the notice was affixed at the dwelling house of the defendant. Thereafter, the suit was decreed ex-parte. Execution Petition filed and also property was sold in execution of the decree on 24.06.2019. One M.V.Devu auctioned the O.P.(C) No.1906/2021 3 property and sale also was confirmed. 4. Thereafter the defendants/Judgment Debtors filed Execution Application to set aside the proclamation on 19.02.2021 and was dismissed. Now, another petition was filed for setting aside the same. It is at this juncture, the defendants 1 and 2 filed I.A. Nos.2663/2018 and 2662/2018 to set aside the ex-parte decree after condoning delay of 1052 days. The main allegation raised to substantiate sufficient cause for the delay was that the defendants did not receive notice in the suit. The learned Munsiff appraised the contention based on the records of the court and forward issuance of notice to the defendants by affixure. The learned Munsiff also adverted to the evidence of PW1, the 1[st] defendant to find whether sufficient cause was shown to condone the delay. In paragraph No.9, the learned Munsiff O.P.(C) No.1906/2021 4 specifically stated that admittedly the defendants had been residing in the address shown in the plaint and these applications were also filed in the same address. Further, the learned Munsiff observed that a school had been functioning in the residential house of the defendants and the defendants used to receive rent periodically. Therefore, the learned Munsiff found that the reason stated by the PW1 to condone delay of 1092 days was not properly explained and, therefore, he failed to show sufficient cause to condone the delay. Accordingly, both petitions were dismissed. 5. C.M.A. No.3/2021 filed by the defendants was considered by Sub Judge, Alappuzha. The learned Sub Judge, after hearing both sides and after evaluating the evidence, found that the reason given by the defendants for their absence before the court O.P.(C) No.1906/2021 5 below was not convincing. However, the learned Munsiff allowed the petition to provide an opportunity to the parties to contest the case on merits. The relevant observation in paragraph 11 of the appeal is as under: _11. Even though the reasons given by the appellants for their absence before the lower court is not convincing, I am of the view that in order to do justice to the parties, it is fair and proper that an opportunity shall be given to parties to contest the case on merits, but subject to payment of costs. The Hon'ble High Court in_ _**Pokku v. Ammini** reported in_ _**1987 KHC 446** also took the same view. Hence I am inclined to already allow both I.A.No.2663/18 and I.A.No.2662/18. According point No.1 is found in favour of the appellants._ 6. Thus, it appears that the finding of the learned Munsiff to the effect that the defendants failed to substantiate sufficient cause to condone delay of 1052 days was confirmed by the appellate court. However, O.P.(C) No.1906/2021 6 without establishing sufficient cause in tune with the mandate of Section 5 of the Limitation Act, the learned Munsiff allowed the appeal and consequently, delay condoned and ex-parte decree was set aside. 7. A decision of the Honourable Apex Court in Civil Appeal No.1166/2006 rendered on 08.07.2010 has been placed by the learned counsel for the petitioner herein to contend that only when sufficient cause is shown, delay is liable to be condoned though the words 'sufficient cause' in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantiate justice. Another decision in Civil Appeal No.2926/2020 also was placed to contend that although there exists no strait jacket formula for the Courts to condone delay, but the Courts must not only take into consideration the entire facts and O.P.(C) No.1906/2021 7 circumstances of case but also the conduct of the parties. The concept of reasonableness dictates that, the Courts even while taking a liberal approach must weigh in the rights and obligations of both the parties. When a right has accrued in favour of one party due to gross negligence and lackadaisical attitude of the other, this Court shall refrain from exercising the aforesaid discretionary relief. 8. In fact, the decisive factor while condoning the delay is not the length of delay, but sufficiency of satisfactory explanation. Here, the defendants filed petition to set aside the ex-parte decree during 2018, when he noticed sale proclamation affixed in the property. In this case, as I have already pointed out, both trial court as well as the appellate court found that the defendants failed to show O.P.(C) No.1906/2021 8 'sufficient cause' to condone the long delay of 1052 days. However, the learned Sub Judge condoned the delay in this case where sale of the property was confirmed due to the laches of the defendants. Therefore, I am of the view that the learned Sub Judge went wrong in allowing the appeal, without 'sufficient cause'. Therefore, I am inclined to set aside the judgment in C.M.A.No.3/2021 dated 31.08.2021 and I restore the common order passed by the learned Munsiff in I.A. Nos.2663/2018 and 2662/2018. In the result, this Original Petition is allowed as above. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww O.P.(C) No.1906/2021 9 ## **APPENDIX OF OP(C) 1906/2021** ## PETITIONER'S EXHIBITS: |EXHIBIT P1|TRUE COPY OF THE JUDGMENT DATED| |---|---| ||29.10.2015 IN O.S.NO.1091/2014.| |EXHIBIT P1(A)|TRUE COPY OF THE DECREE DATED| ||29.10.2015 IN O.S.NO.1091/2014.| |EXHIBIT P2|TRUE COPY OF THE I.A.NO.2662/2018 IN| ||O.S.NO.1091/2014.| |EXHIBIT P3|TRUE COPY OF THE I.A.NO.2663/2018 IN| ||O.S.NO.1091/2014.| |EXHIBIT P4|TRUE COPY OF THE OBJECTION FILED IN| ||I.A.NO.2662/2018 IN O.S.NO.1091/2014.| |EXHIBIT P5|TRUE COPY OF THE OBJECTION FILED IN| ||I.A.NO.2663/2018 IN O.S.NO.1091/2014.| |EXHIBIT P6|TRUE COPY OF THE COMMON ORDER PASSED| ||BY THE PRINCIPAL MUNSIFF'S COURT,| ||ALAPPUZHA DATED 18.3.2020 IN I.A.| ||NO.2663/2018 AND I.A.NO.2662/2018 IN| ||O.S.NO.1091/2014.| |EXHIBIT P7|TRUE COPY OF THE MEMORANDUM OF| ||C.M.A.NO.3/2021.| |EXHIBIT P8|TRUE COPY OF THE JUDGMENT DATED| ||31.8.2021 IN C.M.A.NO.3/2021 BY THE| ||SUB COURT, ALAPPUZHA.| |EXHIBIT P9|TRUE COPY OF THE MANORAMA ONLINE NEWS| ||REPORT DATED 8.3.2013.|